S. M. Kamal v. State of U. P. — 1975 DIGILAW 441 (ALL)

JUDGMENT K.C. Agrawal, J. - This petition under Article 226 of the Constitution was filed challenging the order of the Nagar Mahapalika, Allahabad, granting a licence of the roadside patri in front of 19/35, Mahatma Gandhi Marg, in favour of respondent No. 3 pursuant to the auction thereof dated 13-5-1975. There were initially seven petitioners in this petition. Counsel for the petitioners made a statement on 28-8-1975 that he was not pressing this petition on behalf of petitioner Nos. 2 to 7. Consequently I am concerned only with the petitioner No. 1, that is S. M. Kamal, who according to the allegations made in the writ petition is the General Manager of the Palace Cinema. 2. The facts leading to the above petition are as under : The Nagar Mahapalika advertised the auction of piece of land situated on the Mahatma Gandhi Marg near the Palace Cinema for being held on 13-5-1975. The purpose of the auction was to issue a licence for a cycle stand. On 13-5-1975, the auction took place and the respondent No. 3 being the highest bidder was found entitled by the Mahapalika to obtain the same for the period expiring on 31-3-1976, The petitioner challenged the right of the Mahapalika to auction the above piece of land for running a cycle stand over a public street. The allegations made in the writ petition were that prior to 11-5-1975, the Nagar Mahapalika never had any cycle stand over the land in dispute and, therefore, the said auction did not pertain to the sale of any theka of a cycle stand, which was advertised in the notice. The petitioner also contended that the Mahapalika was a statutory body created under the U. P. Nagar Mahapalika Adhiniyam. According to the petitioner, it has only those rights and obligations which have been conferred upon it by the said Adhiniyam. The Nagar Mahapalika has been empowered under Section 128 read with Section 151 of the Adhiniyam to dispose of the property acquired by or vested in it in specified manners only for the purposes of the Act and subject to the provisions thereof. As, according to the petitioner, the running of a cycle stand is not one of the purposes mentioned in the Act, the auction was beyond the powers of the Nagar Mahapalika. 3. As, according to the petitioner, the running of a cycle stand is not one of the purposes mentioned in the Act, the auction was beyond the powers of the Nagar Mahapalika. 3. A counter-affidavit was filed by the Nagar Mahapalika asserting that the land in question vested in it under Section 128 of the Adhiniyam and the Mahapalika was within the statutory rights to license a part of the road or patri for the purposes of he cycle stand. The licence of the roads, according to the allegations made in the counter-affidavit, is given in Section 295 of the Adhiniyam. Subsequently, the Mahapalika filed another counter-affidavit stating the purpose for which the land had been auctioned by it on 13-5-1975. It stated that the surface area of the land was 8 feet x 10 feet and it was not surrounded by bamboos or other structures, and that it was a part of the road patri given to the respondent No. 3 in the auction. It further stated that he Mahapalika had already made provisions providing for parking places for cars, scooters etc. in a busy locality like Civil Lines where a large number of persons come. It was thought essential to make a provision for a cycle stand where people could keep their cycles while they were either witnessing the cinema or strolling in the evening. Those who would utilise the services of the cycle stand would be required to pay a nominal fee to the person who runs the cycle stand and guarantees the security of their cycles. The Nagar Mahapalika asserted that the establishment of the cycle stand would fall within the ambit of Section 114 (xxi), (xxix) or Section 115 (xx) and (xxxi). The petitioner has filed a reply to the aforesaid counter-affidavit denying that the Mahapalika could under the Adhiniyam provide for the cycle stand licence. The emphasis of the petitioner is that the Nagar Mahapalika gave this land on auction only for the purpose of augmenting its revenue. 4. Counsel for the petitioner contended that the licence granted to respondent No. 3 for running a cycle stand on a pubic road was illegal and wrong, being contrary to the provisions of the Adhiniyam. He referred to Sections 128 and 451 in support of his contention. 4. Counsel for the petitioner contended that the licence granted to respondent No. 3 for running a cycle stand on a pubic road was illegal and wrong, being contrary to the provisions of the Adhiniyam. He referred to Sections 128 and 451 in support of his contention. He urged that Section 128 of the Adhiniyam provided that Mahapalika "for the purposes of this Act" would have right to dispose of any property vested in it. Similarly, he submitted, Section 451 dealt with general provisions regarding grant, suspension or revocation of licences. He urged that as the running of a cycle stand was not one of the purposes mentioned in the Act, therefore, the licence issued by the Nagar Mahapalika was illegal. He also referred to Sections 114 and 115 of the Act for the purpose of showing that none of the provisions of the aforesaid sections contained any such obligations of maintaining a cycle stand, as had been done in the instant case. He referred to the provisions of Sections 128 to 193 of the U.P. Municipalities Act for the purposes of pointing out that the power given under the latter section was much wider than conferred by Section 128. He, therefore, urged that opening of the cycle stand being against the provisions of the Act was an illegal activity in which the Nagar Mahapalika could not be permitted to indulge. 5. As pointed out above, the Nagar Mahapalika relied upon Sections 114 and 115 for showing that the cycle stand was to be run for the purpose specified in the aforesaid sections. Section 114 deals with the obligatory duties of the Mahapalika. Clause (xxi), in so far it is material for our purposes, provides for the regulation of markets, whereas Clause (xxix) deals with improvement of public streets whereas Clause (xxxi) provides for regulation of traffic. Section 115 deals with the construction, establishment and maintenance of works of public utility. Clause (xxxi) lays down the adoption of any measure likely to promote the public safty or convenience. Counsel for the Mahapalika contended that the opening of a cycle stand was covered by all the clauses, mentioned above. I, however, do not agree with him that all the clauses relied upon can be pressed into service in the present case by the Nagar Mahapalika. Counsel for the Mahapalika contended that the opening of a cycle stand was covered by all the clauses, mentioned above. I, however, do not agree with him that all the clauses relied upon can be pressed into service in the present case by the Nagar Mahapalika. The nearest provision which can apply to the present case is Clause (xxxi) of Section 115 and Clause (xxix) of Section 114. It cannot be denied that Civil Lines is a busy area where a large number of persons come every day mostly by cycles. In discharge of its duties the Nagar Mahapalika has already earmarked spaces for parking cars and scooters. As a large number of persons come by cycles as well, the Nagar Mahapalika is well within its power to provide a space for keeping cycles in order to regulate the traffic. It cannot, therefore, he said that providing for a space for keeping cycles at one place is not likely to promote public safety and convenience as in the absence of such a cycle stand one cannot rule out the possibility of cycles being kept at various places in the Civil Lines, which may obstruct the public passage to the discomfort of pedestrians and others. In my opinion therefore. providing for parking place in the Civil Lines would be to regulate the traffic as well by preventing congestion and preserving local amenities, it would thus be one of the purposes contemplated by Sections 114 and 115 of the Adhiniyam. The mere fact that the proprietors of the Palace Cinema have already provided for a cycle stand in their premises would not take away the right of the Nagar Mahapalika to provide for another cycle stand. It may or may not be true that the cycle stand owned by the Palace Theatres is sufficient to meet the need of the people visiting Civil Lines, but the question about the power of the Mahapalika to provide for a cycle stand does not depend on adequate provision having already been made by the Palace Theatres. In my opinion, therefore, counsel for the petitioner is not right in his contention that the auction tor running the cycle stand held on 13-5-1975 being not for one of the purposes specified in the Act, was not within the competence of the Nagar Mahapalika. 6. In my opinion, therefore, counsel for the petitioner is not right in his contention that the auction tor running the cycle stand held on 13-5-1975 being not for one of the purposes specified in the Act, was not within the competence of the Nagar Mahapalika. 6. The argument made by the learned counsel for the petitioner that qualifying words, "means or measures which it lawfully competent to it to use or to take" used in Section 114 of the Adhiniyam make it clear that the Mahapalika cannot exercise powers thereunder in an unbridled and unfattered manner and must adopt only those measures which it is legally competent to take, also fall to the ground as in my opinion the measure adopted by the Mahapalika is not beyond the provisions of the Adhiniyam. 7. Learned counsel for the petitioner also emphasised that the language of the advertisement made by the Nagar Mahapalika left no doubt that the real purpose behind granting the licence for the cycle stand near a cinema house was simply to make profits by crippling the cycle stand business of the cinema and setting up a rival cycle stand. He urged that the Mahapalika had not opened the cycle stand with any allowable aim of serving public interest and regulation of traffic but for making unreasonable profits. The submission made by the counsel for the petitioner does not have any factual basis in the writ petition. This submission assumes that the proprietors of the Palace Theatres have monopoly to run their cycle stand to the exclusion of others. Like the proprietors of the Palace Theatres, all other persons have equal right to indulge in the same business. Similarly, if the Nagar Mahapalika has the power under the law to open a cycle stand for the purposes of Act it cannot be found to be illegal merely because opening of a cycle stand in front of the one owned by the proprietors of the Palace Theatres is likely to affect their business. So long as it is not possible for the Court to hold that the purpose of opening a cycle is not covered by the Act, it cannot find that the auction held.on 13-5-1975 is invalid merely because adequate arrangements for keeping cycles in that area had already been made. 8. So long as it is not possible for the Court to hold that the purpose of opening a cycle is not covered by the Act, it cannot find that the auction held.on 13-5-1975 is invalid merely because adequate arrangements for keeping cycles in that area had already been made. 8. Counsel for the petitioner had, however, conceded at one stage of the case that had the Mahapalika provided for the cycle stand without auctioning the same to respondent No. 3 and permitting persons to keep their cycles free of charge, the said auction would not have been illegal. This argument seems to me to be placing arbitrary and fanciful limitation on the right of the Mahapalika. This will not be justified by anything to be found in the Act. I, therefore, cannot find fault with the auction held by the Mahapalika on this ground suggested by the counsel for the petitioner. As a matter of fact, this concession made by the counsel for the petitioner goes a long way to establish that the present petition is not bona fide and has been filed by S.M. Kamal with a purpose to exclude the Nagar Mahapalika to run its cycle stand lest it may after the business of the Palace Theatre. As already observed, as the law does not accept any monopoly in favour of any individual to run or own a business, the acceptance of the plea in the writ petition raised on behalf of the petitioner would result in providing for a monopoly in favour of the Palace Theatres. 9. The other aspect which requires decision in this connection is the scope of the words, "for the purposes of the Act."Learned counsel for fire petitioner wanted to give a very narrow meaning to the aforesaid phrase by arguing that the purpose for which the licence could be issued by the Mahapalika must be one of those specified in the provisions of the Act. I have given my careful consideration to the above argument, but I am unable to accept the same. The word purpose means something that one sets before oneself as an object being attained, an aim or end to be kept in view. The object of the Act is given in its Preamble as one meant to ensure better municipal Government in the cities. A large number of obligatory duties are mentioned in Section 114 of the Act. The word purpose means something that one sets before oneself as an object being attained, an aim or end to be kept in view. The object of the Act is given in its Preamble as one meant to ensure better municipal Government in the cities. A large number of obligatory duties are mentioned in Section 114 of the Act. The Nagar Mahapalika is also required to perform many discretionary duties as laid down in Section 115. Even if it be assumed that opening of a cycle stand is not directly covered by anyone of these clauses mentioned in Sections 114 and 115, but the fact still remains that the money which would be received by the Mahapalika out of the auction will be utilised by it in its manifold activities. The licence issued for a cycle stand would, therefore, be in this way for the purposes of the Act. The true connotation of the words "for the purpose of the Act" in my opinion, is that the purpose for which the power given under Section 128 is utilised should not be one which is incompatible with the objects or purposes otherwise mentioned in the Act. It is not necessary that it must he one of the purposes specifically mentioned in so many words in the Act. The object or purpose of the Act, as stated above, is to effect improvement of the Mahapalika and to enable the Nagar Mahapalika to raise funds for carrying into effect the power to auction the land under Section 128, can be readily conceded. 10. The question of interpretation of the words "for the purposes of the Act" came for decision before the Court of Appeal in The Grand Junction Canel Company v. Petty, (1888) 21 QB 273. In this case the argument was raised by the plaintiffs that where a Statute authorised a company to take land compulsorily and to hold it for specific purposes, they could not apply it to other purposes. This argument was repelled by the Court of Appeal on the view that so long as the purpose for which the land was given by the Company was not incompatible with the objects prescribed by the Act, the same could not be held to be illegal. The same was the view taken in R.H. Galloway v. The Mayor and, Commonalty of London, (1866) LR 1 HL 34. 11. The same was the view taken in R.H. Galloway v. The Mayor and, Commonalty of London, (1866) LR 1 HL 34. 11. For the reasons given above, I, therefore, find that as the giving of the licence in the instant case for opening a cycle stand does not contravene any provision of the Act. the auction held for the said purpose cannot be held to be against the Act and, as such, would be one governed by Section 128. 12. It may also be noted that under Section 123 of the Act, all the rights have been vested in the Nagar Mahapalika. It may, also be noted that Sub-sec. (2) of Section 273 of the Act provides that the Mahapalika may turn, divert, or discontinue the public use of or permanently close the whole or any part of a public street vested in it. In exercise of this power, the Nagar Mahapalika could divert the use of a portion of the street by providing for a cycle stand. The power of the Nagar Mahapalika to dismantle some of the shops standing on the public street for the purpose of providing for a park was challenged in S.D. Bhatia v. M. Butt, Administrator, Nagar Mahapalika, Writ Petition No. 2048 of 1968. A learned Single Judge of this Court held that the Mahapalika had the unconditional power to discontinue the public use of any part of a public street. I am in respectful agreement with the view taken in the above case and find that the auction by the Nagar Mahapalika was within the authority possessed by it. 13. In the instant case, as noticed above, Sections 114 and 115 confer powers on the Nagar Mahapalika for carrying out the duties enumerated in these sections. One of the duties, as mentioned above, is regarding regulation of traffic. As observed, regulation of traffic would also include the power to provide a space for parking bicycles. For the purpose of providing space for parking cycles, the Nagar Mahapalika could justifiably divert the use of the footpath in the instant case. So, the statutory authority authorising the construction has been specifically provided. As observed, regulation of traffic would also include the power to provide a space for parking bicycles. For the purpose of providing space for parking cycles, the Nagar Mahapalika could justifiably divert the use of the footpath in the instant case. So, the statutory authority authorising the construction has been specifically provided. Even if such authority is not conferred by express words, where the legislature authorises the doing of an act in such manner as to be physically inconsistent with the continuance of the public right the said right should be deemed to be extinguished by implication. In Corporation of Yarmouth v. Simmons, (1878) 10 Ch. 518, the law of highways has been stated as under:- "Where the legislature authorises the erection of a budding or other works in such a manner as to be physically inconsistent with the continuance of the public right, the right is extinguished by implication, though there are no express words in the Act referring to it." 14. Providing for space for a cycle stand is also a bona fide exercise of the statutory powers of the Nagar Mahapalika it as much as there is nothing on the record of the present case showing the absence of the same. The mere fact that the cycle stand was provided in front of the one owned by the Palace Theatre would not be sufficient to conclude that the action of the Nagar Mahapalika was malafide. In W.H. Chaplin and Company Limited v. Westminster Corporation, (1901) 2 Ch. 329, the placing of a lamp post in the street was held to be a bonafide exercise of the statutory powers, although the lamp post was placed in the pavement opposite the plaintiffs house. Similarly, in Goldhary and Son Ltd. v. Liverpool Corporation (1900) 82 L.T. 362 a tramway company erected a pole and fuse box in the footpath close to the principal entrance to the plaintiff premises. It was held that there had been no abuse of the defendants statutory powers. In Edgington v. Swindon Corporation, (1939) 1 K.B. 86, a local authority in exercise of its statutory powers erected bus shelters in street and the shelters interfered to some extent with the rights of access from adjoining property, it was held that they had acted reasonably. It was held that there had been no abuse of the defendants statutory powers. In Edgington v. Swindon Corporation, (1939) 1 K.B. 86, a local authority in exercise of its statutory powers erected bus shelters in street and the shelters interfered to some extent with the rights of access from adjoining property, it was held that they had acted reasonably. For the reasons given above, I am unable to find any merit in the submission of the counsel for the petitioner that the action of the Nagar Mahapalika in the instant case was mala fide. As stated above, the petitioner has not given any material in support of his content oil on this point. 15. Reference may be made to an authority of the Supreme Court in Municipal Board, Manglaur v. Mahadeoji Maharaj, AIR 1965 SC 1147 . In this case the plaintiff, who was the owner of the plot situated in the town of Manglore, through which ran a public road, brought a suit against the Municipality restraining it to erect a structure on the vacant site wherein the Municipal Board intended to install a statue of Mahatma Gandhi. The content on was upheld by the Supreme Court in appeal on the ground that the land belonged to the plaintiff and although the land could be deemed to have been dedicated to the Municipal Board for the purpose, of the highway, but the said vesting in the Municipal Board did not take away the right of the owner of the soil who could thus maintain an action for trespass against the Municipal Board. In this case, it may be pointed out that the Supreme Court did recognise the right of the Municipal Board to use the public road, as were necessary for the maintenance or tire user of the road as a public highway. As stated above, the suit was decreed because the election of the statue on the public road was found not necessary for the maintenance or user of the pathway. 16. For the reasons given above, the writ petition fails and is dismissed with costs. The stay order is discharged.